COURT OF APPEAL FOR ONTARIO DATE: 20210203 DOCKET: M51875 (C68114)

Roberts, Zarnett and Sossin JJ.A.

BETWEEN

Yong Wang Appellant/Plaintiff (Appellant/Responding Party)

and

Christopher Banton Respondent/Defendant (Respondent/Moving Party)

Counsel: William J. Jesseau, for the moving party/respondent Yong Wang, acting in person

Heard: January 27, 2021 by video conference

Reasons for Decision

[1] The respondent moves to quash the appellant’s appeal from the order of Justice Shaun O’Brien, dated February 12, 2020, on the basis that this court does not have jurisdiction to hear this appeal. In the alternative, the respondent seeks an order staying or dismissing the appellant’s appeal as frivolous, vexatious, or otherwise an abuse of process.

[2] The appellant is a plaintiff in an action for personal injury and other damages that he claims he sustained as a result of a motor vehicle accident involving the respondent, which occurred on March 5, 2010. Notwithstanding three orders of Case Management Masters of the Superior Court of Justice, the appellant has refused to attend a defence medical examination. Justice O’Brien dismissed the appellant’s appeal from the September 25, 2017 order of Master Priti T. Sugunasiri, requiring the appellant to comply with the orders of Master Lou Ann Pope, dated August 17, 2016, and Master Barbara McAfee, dated December 12, 2016, that he attend a defence medical examination. She also ordered that he attend a defence medical examination within 60 days of the date of her order, failing which, the respondent could move to dismiss the appellant’s action without notice.

[3] The appellant had initially commenced his appeal from Master Sugunasiri’s order in the Divisional Court. On December 5, 2019, Justice Lise G. Favreau, sitting as a single judge of the Divisional Court, determined that as the order appealed from was interlocutory, the Divisional Court had no jurisdiction to hear it. She therefore transferred the appeal to the Superior Court. The appellant did not seek to appeal from this order.

[4] Justice O’Brien’s order dismissing the appellant’s appeal from an interlocutory order and ordering his attendance at a defence medical examination is itself interlocutory, as it does not decide a final issue in the litigation between the parties and deals with a purely procedural matter. In consequence, this court has no jurisdiction to hear the appeal, and the appeal must be quashed.

[5] An appeal from an interlocutory order of a judge of the Superior Court lies to the Divisional Court with leave as provided in the rules of court, in accordance with s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. A motion seeking leave to appeal must be brought by a notice of motion, which must be served within 15 days of the order: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 62.02(3). The time for the appellant to bring such a motion has long expired.

[6] The quashing of the appeal in this court is without prejudice to the appellant, as he may seek leave to extend the time to bring a motion for leave to appeal to the Divisional Court, pursuant to r. 3.02 of the Rules of Civil Procedure.

[7] The respondent also seeks an order that the appellant be prohibited from bringing any further motions in this appeal or in any appeal from the same interlocutory order of Justice O’Brien without leave, pursuant to r. 2.1.02(3) of the Rules of Civil Procedure. The respondent frankly conceded in oral submissions that the practical effect of quashing the appeal is that, if an extension of time is granted by the Divisional Court, the appellant will have to seek leave to bring his appeal before the Divisional Court in any event.

[8] “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process”: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 43. However, as this court also observed in Simpson, at para 43, “the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit”, and the court will consider whether a motion to quash is “the more appropriate procedural vehicle”.

[9] In this case, the respondent’s successful motion to quash the appellant’s appeal for this court’s want of jurisdiction was its primary focus and, therefore, “the more appropriate procedural vehicle”. We therefore decline to make an order under r. 2.1 of the Rules of Civil Procedure.

Disposition

[10] The respondent’s motion to quash the appellant’s appeal is granted without prejudice to the appellant seeking an extension of time from the Divisional Court, and if granted, leave to appeal to the Divisional Court.

[11] In the circumstances of this case, the respondent is entitled to his costs on a partial indemnity basis in the amount of $2,000, inclusive of disbursements and applicable taxes.

“L.B. Roberts J.A.” “B. Zarnett J.A.” “Sossin J.A.”